The Schengen Agreements: a Catchy Topic for Politicians that Easily Backfires

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In a speech delivered on 11 March 2012, during his presidential campaign, French President Nicolas Sarkozy criticised the current functioning of the Schengen system. Wanting to show his commitment to fight against illegal migration, he announced that France would “suspend its participation in the Schengen agreements” if a structural reform was not implemented within a year. In particular, he supported a system that would enable to sanction or exclude from the Schengen area those states that have difficulties controlling their borders. This politically strategic speech needs, however, to be closely analysed with regard to the reality of migration in the European Union and to the binding power of European Law.

First, the image of migration spread by the media and by politicians represents only a small part of reality. For instance, events such as the Lampedusa “crisis” are frequently overused and tend to trigger disproportionate reactions, whereas they should be confronted with global figures on migration. In the Lampedusa case, about 20,000 Tunisian migrants entered Italy in over a month. This number is minor compared with the official statistics of entry to the Schengen area: over 11 million Schengen visas were granted to foreigners in 2010. As to the asylum scare: out of 2300 of asylum applications lodged by Tunisians in February and March 2011, 90% were contained to Italy. [1] This influx is certainly not comparable to the mass influx of displaced persons that occurred in the aftermath of the conflict in the former Yugoslavia. [2] That crisis led to the adoption of a European solidarity mechanism meant to balance efforts between Member States in receiving displaced persons (current directive 2001/55/EC [3]). Putting the Lampedusa “crisis” numbers in a perspective may explain why the European Council did not resort to this mechanism in the Lampedusa case. The numbers were well below any emergency threshold.

As regards illegal migration, it is often associated with an insufficient control of the external Schengen borders. However, statistics show that the vast majority of illegal migrants present in the Schengen area overstay after their visa/residence permit has expired. [4] Therefore, the best way to fight against illegal migration would be to strengthen not suspend Schengen, through the introduction of an Entry/Exit System. It would enable a constantly updated record of third-country nationals present in the Schengen area. This project is being discussed at the European level, but its estimated cost – development costs of about 200 million euros over three years and yearly operating costs of up to 100 million euros – poses a great obstacle to its introduction [5].

Second, the idea of France leaving the Schengen area would not be easy to put in place, since the Schengen agreements were integrated in the Treaty of Amsterdam adopted in 1997. Such a withdrawal would thus require a review of the Treaty on European Union, which is a long-lasting process akin to opening Pandora’s box.

Moreover, the consequences of such a withdrawal should be carefully evaluated. Restoring border checks may enable France to achieve a better control of entries on its territory. But it cannot jeopardize the free movement of people, which is an EU fundamental right. Nor can it go against the principles laid down in the European Convention on Human Rights.

Finally, French President Nicolas Sarkozy called for reforms of the Schengen system that are already on track. Indeed, following the Lampedusa “crisis”, the European Commission launched, in September 2011, two legislative proposals (COM(2011)559 [6] and COM(2011)560 [7] ) aiming at strengthening the overall functioning, credibility and sustainability of the Schengen area. In particular, these proposals were to better deal with exceptional circumstances. The Schengen area will change for the better, but will France be the helping hand or obtrusive element in the process? This remains to be seen.

The MPC Team